Can I Sue My HOA for Failing to Enforce Rules?

HOA Duty of Care

We’ve explored in this article the circumstances under which a homeowner may sue their HOA for failing to enforce rules. Now, let’s consider what exactly those rules are, plus the HOA’s responsibilities to enforce them. After all, an HOA can only be liable for not enforcing rules and regulations that exist.
A Homeowners Association’s (HOA) main responsibility is to adopt reasonable rules and bylaws that govern the community. HOA-created rules and bylaws cannot contradict local, state or federal laws . Rules and bylaws can apply to any type of property, but their enforcement is typically contingent on provisions in a Covenants, Conditions and Restrictions (often called "CC&Rs") agreement.
Bylaws specify how an association is organized and the frequency with which it will meet. They do not ordinarily outline rules of membership. Rules may be adopted at an association’s annual meeting or at special meetings with a quorum.
Common rules concern:
Specific rule wording varies by state law and individual CC&Rs. To be enforceable, rules generally must:

HOA Lapses: Common Causes

A common reason that the HOA may not be enforcing the rules as they should is that the HOA is simply unaware of violations altogether. Maybe the responsible party is a friend or another board member, or perhaps the HOA is just so large that it’s hard to notice when one person isn’t upholding the rules. This is usually the best scenario for all involved because it’s easy to remedy. Oftentimes, the issue can be solved by simply bringing it up at an HOA meeting or sending in a polite email. In the event that a rule has been identified but is still not being enforced, the HOA may be severely short on resources. Even if a rule is clearly being violated, if the HOA has only one staff member or no one dedicated to property issues, that person may spend all of his or her time answering other people’s emails and phone calls, and work on the property in question falls by the wayside. In some cases, the rule may not be enforced because the board isn’t in agreement discussing how to do it. If the rule applies only to one resident, then maintaining harmony may be more important to the HOA than strictly upholding the rules.

Legal Grounds for Hitting an HOA with a Lawsuit

Perhaps the most common legal grounds upon which a homeowner can sue their HOA for failure to enforce rules is breach of contract. When an individual purchases property in a Home Owners Association, they are automatically deemed to have entered into a contract with the HOA to abide by the rules and regulations of the HOA. This type of contract is referred to as a "restrictive covenant". These restrictive covenants are binding on all homeowners living within the HOA and are designed to provide a "common scheme" that prevents an individual from operating an otherwise legally permissible activity in a residential area (such as running a dog kennel) when a majority of the HOA has voted to ban this type of activity in order to maintain the residential and tax-friendly status of the community.
For example, in order to implement these restrictions into enforceable law, the HOA must include this provision in the Covenants, Conditions and Restrictions ("CC&Rs"). If the CC&Rs have not been properly amended to reflect the restrictions, however, a homeowner may have grounds to sue their HOA for enforcement without having the restrictions clearly stated in the CC&Rs. This is because even if the CC&Rs omit specific language restricting a particular type of activity, the majority rules that govern the association might still be valid.
In general, the Covenants, Conditions and Restrictions ("CC&Rs") are recorded concurrently with the plat map at the county clerk’s office. When an owner purchases a home in the subdivision, the CC&Rs are usually recorded in the owner’s name in the land records at the county clerk’s office. A copy may also reside in the owner’s deed or easement documents. At a minimum, the CC&Rs will set forth rules and restrictions that will apply to each person who buys a parcel of land, regardless of whether that person notices the restrictions. The CC&Rs are also referred to as declarations of restrictions.
If a subdivision has been developed within the past 25 years, then the CC&Rs were created pursuant to the Texas Uniform Declaratory of Restrictions Act. Texas Property Code §202.001, et. Seq. Under this statute, the right of a HOA to restrict a land owner’s use of his own property is tightly restricted. Under Texas law, a recorded plat warning homeowners of CC&Rs and restrictions, when a homeowner purchases a property in Texas, their use of the property is subject to the restrictions and covenant as if the restrictions and covenants were incorporated in the deed. The homeowner at the time of purchase is deemed to have notice of the restrictions and sales price of properties in the neighborhood are generally affected by the existence of restrictions. The restrictions may be enforced by an HOA, a property owners association, or a residential management company, regardless of whether the entity responsible for enforcement has any other duties.
Further, the HOA must have authority to impose fines and penalties for violations of these regulations and must also have standing to sue. If a homeowner violates the CC&Rs, a lawsuit terminates the violation so long as the plaintiff is a member of the community. When the association has the right to enforce the CC&Rs on behalf of one or more owners, the consequence of noncompliance should be liability for damages.
In a neighborhood containing only a few homes, lack of notice may override ambiguity in the CC&Rs. A court may allow a new buyer to rely on the seller’s representations in a disclosure form that the CC&Rs do not limit the addition of a fence, even if the CC&Rs appeared to limit fences. Acosta v. Martinez, 105 S.W.3d 622, 626 (Tex.App.-Austin 2003, pet. denied). A fence failed to comply with restrictions banning any structure, but the seller reassured the buyer that the fence was allowed. The court held that this was a fact question.
In the case of Spradlys, Inc. v. Paramo, 680 S.W.2d 874 (Tex. App. – Austin 1984, no writ) the court held that the homeowner’s understanding of the CC&Rs created a fact issue in a suit for damages involving a deed restriction on fences. After purchasing several lots, the buyers hired an engineer who advised that they should not erect a fence on a lot due to the danger of flooding. There was no evidence that the buyers noticed the CC&Rs prior to such advice. The owner’s deception or actual knowledge of the violation can allow a fence to remain.

Filing a Lawsuit: Steps to Follow First

Before you file a lawsuit against your HOA, there are some things you need to consider. If you own a home governed by an HOA then you are subject to their rules and regulations. If the HOA is not enforcing the rules then it is possible that it may be a good idea to draft a letter trying to get them to enforce the rule that they are negligent in following. Sometimes the threat of a lawsuit will get the HOA to comply with their own rules.
Another thing to consider is taking a second look at the rule that the HOA is not enforcing. You should think about whether that rule is fair or if it actually protects the community. This information will come in handy if you end up in court. It is also a good idea to document when and how the rule is being violated. Taking pictures and documenting what you have seen the rule breakers do will be helpful when you need proof later.

What to Expect When Suing an HOA

Financial Compensation or Restructured Fees
If you sue your homeowners’ association, the board of directors may have to reimburse you for losses due to their inaction. If not, then any proposed fee you presented as part of your case may be charged to them. Legal action can be a costly option for this reason: even if you win, the cost of suing an HOA for damages could be passed on to all the members in your community. Just buying the plaintiff’s legal fees is enough to start resentment.
Forced Enforced Rule Changes and Improved Enforcement
The judge may order the HOA to clarify existing rules, if too much ambiguity was found in their language. Enforced posting of these rules where all members can view them is also likely . The judge has the authority to direct the association to improve enforcement.
In particular, it’s interesting to note that the judge will likely demand that the association create a procedure for reporting violations and a specific penalty system that’s applied consistently (these are called "progressive discipline systems"). Such order can’t cross the line into arbitrary-maneuver territory, but it can provide teeth for existing rules and consistency in enforcement.
Involuntary Dismissal of Rules That Don’t Work for The Community
The judge may rule that particular HOA rules are unfair and/or ineffective, ordering the association to strike them out from their records. This can be anything from making some exceptions to the CC&Rs to removing a ban or requirement altogether.

Other Paths to Consider

The legal approach isn’t the only tool in the toolbox for enforcement of HOA rules. There may be other ways to resolve your problems, without suing everyone’s favorite little not-so-small, not-so-benevolent, little HOA. The first place to start, I believe, is with a letter directly to the HOA. Often times, they simply don’t know that the violations(s) exist. Or, they know, but their manager and/or board lacks the political fortitude to do anything about it. Be the squeaky wheel! I have been surprised to discover how many people had neglected to do the simplest chore – tell the HOA about unsightly weeds or trash that have been taking up residence in someone’s yard or along the common property. Bring your problem to their attention and you may very well find that they resolve the problem almost immediately.
Assemble a Neighborhood Pack. The squeaky wheel is easier to fund (with those blood sucking lawyers you hate so much) than one individual, and can wield more political influence than a single homeowner. If, say, the violations you are seeking to remediate are a decaying fence backing onto common area, the HOA may be up in arms over the prospect of sending just one homeowner a demand letter. But how about a group of four or five homeowners? Now – there’s a different story! HOA Board members tend to be neighbors first, and serving on the Board a very distant second. When faced with a growing group of chewed up fences, a great many Board members may find themselves suddenly on the side of the fence you’re on.
Use the threat of court action as a sword and not a shield. We have discussed before how it is often a great mistake to make the first move by filing suit. It is a strategic blunder that could cost you big bucks in the future. Rather, if you see that the HOA is resolving a matter you have brought to their attention (thank you!), why not use that as an opportunity to help protect yourself from future disputes by signing a Release with the HOA that contains a non-waiving clause for the specific violations at issue? The HOA will have more on their mind than to continue the fight when they are faced with release in return for you dropping your demand letter. You will essentially be telling them you won’t be back on this issue again.
One alternative to all-out war is to consider arbitration. There are some pros and cons to arbitration compared to court. For example, arbitration awards are not appealable absent fraud; whereas a party could petition the court to vacate a court award based on some fraud by the other party. Arbitration can often have a much shorter timeline than a lawsuit in terms of time to resolution because of how quickly parties can be compelled to arbitrate to a decision. A potential downside of arbitration is that in the event of a breach of that arbitration award, the breaching party could be handed a quick judgment from the court (since arbitration awards can be subject to a very limited review for appeal) and have custody of the case without the parties even appearing in court. Arbitration can be a great tool when used correctly and given the right issues.

Keys to Winning a Case

Before you take your HOA to court, we recommend that you take a few steps to strengthen your case. Most importantly, get your facts straight and know what you are talking about. The more organized your evidence is, the better your chances are of prevailing in a court battle. A great way to get started with organizing your case is to make a list of all of your documents, including bylaws, covenants, declarations, rules and regulations, and more. You can ask the HOA for copies of these documents if they are not readily available to you. Then, take a look through your list and see which documents you will need for your case. Expert witness documents are also good to have. If you need a professional, like a licensed contractor, to testify on your behalf, you should have those documents readily accessible as well.
Next, compare the infraction made to the rules set forth in the documentation that has been made available to you . It is crucial that your evidence is current, as rules and regulations can change from time to time. Look for evidence of a violation of these rules that supports your case. For example, if residents of the neighborhood are required to park their cars in the garage, make sure to look for evidence that shows that other residents are breaking this rule without penalty.
If you want to take your HOA to court, it is best to seek the professional counsel of an attorney that has experience in these situations. Having a lawyer on your side could be the deciding factor in a judge favoring your side of the case. In addition, you will want to do your own research and find out if the HOA’s violation of the association agreement is worth the time and effort to take them to court. In many cases, a simple letter sent by a lawyer to the HOA stating your case will be enough to get them to cooperate.